Saturday, September 1, 2018

Prohibition in America lasted 13 years—until 1933,
when President Franklin D. Roosevelt signed a “beer bill” as one of his first
acts in office. The Twenty-First
Amendment—­the only constitutional amendment ever to reverse an earlier
amendment—went into effect by the end of that year.

But the collateral damage of Prohibition still
reverberates through the criminal justice system.

Much has been made of the gangland violence that
punctuated Prohibition. Mobsters like Al Capone, who made millions during
Prohibition, would stop at nothing to corner the bootlegging market.

However, that was only one facet of the violence.

At times, the police were worse than the mob, and
the subsequent efforts to curb Prohibition-era police misconduct have also left
a lasting impact on the search for accuracy in prosecutions and limits on
excessive force by police officers.

While the potential benefit to crooked cops was
obvious, over-zealous “honest” officers often took advantage of the zealous
enforcement climate created by Prohibition to violate individuals’ privacy,
destroy property, or engage in physical violence—all in the name of stamping out
alcohol use.

As Oliver points out, police behavior during this
era shifted the focus from procedures to ensure accurate criminal trials to
preventing police misconduct. The result was the exclusionary rule.

Thirteen days after the Volstead Act made
it a federal crime to manufacture or sell alcohol, the U.S. Supreme Court
decided Silverthorne
Lumbar Co. v. United States. The Court found that the Fourth Amendment
prohibits the government from introducing evidence gathered as the result of an
unlawful seizure.

The exclusionary rule was not restricted to illegal
searches. At the time, police were practitioners of the “third
degree”—violence-induced confessions. The term is better known as torture.

Oliver examines the rigidity of a rule that excludes
reliable evidence of criminal conduct because of the manner in which it was
obtained or, as Justice Cardoza famously said, the result of the watchman’s
“blunder.”

By 1939, not only was illegally obtained evidence
being excluded but also any evidence discovered as a result of the illegally
obtained evidence. The fruit of the poisonous tree, as it became known, was
excluded regardless of its reliability.

About the same time, technology began to get in the
way of the U.S. Constitution.

As telephones became more and more useful in
criminal enterprises, the High Court was forced to consider the privacy rights
of individuals. Oliver meticulously maps out a history of the wiretap,
highlighting that the Court’s first foray into wiretapping was a failure—a
precursor to the modern Court’s struggle with rapidly evolving technology.

In Olmstead v United States, Chief
Justice William Howard Taft concluded that the Fourth Amendment only protected
tangible things—persons, papers, and effects. Since the police eavesdropped on
telephone calls while clinging to a telephone pole outside the house, and not
in the house, there was no intrusion and no violation of the Fourth Amendment.

According to Oliver, wiretapping during Prohibition
“created such a backlash that communication over wires became more protected
than information in sealed envelopes or effects in one’s home.”

So how does Prohibition affect us today? Oliver
examines, with clarity and finesse, the Warren Court’s landmark decisions
in Mapp v
Ohio (exclusionary rule); Terry v Ohio (stop
and frisk); and Miranda
v Arizona (right to counsel and to be free of interrogation).

Ignoring police misconduct in favor of more reliable
evidence of criminal conduct is not an even exchange.

Certainly Oliver’s examination of the case law would
support that conclusion, but ignoring police misconduct in favor of more
reliable evidence of criminal conduct is not an even exchange.

As Oliver writes, the late Justice Antonin Scalia
suggested in Hudson v
Michigan that the exclusionary rule is obsolete because of an
“increasing professionalism of police forces, including a new emphasis on
police discipline.”

That increase in professionalism is because of the
exclusionary rule— not a reason to abolish it.

Oliver’s work is thought-provoking. Accuracy should
be the goal of any system of justice, but protecting the public from unlawful
police practices—including excessive force—is also a laudable goal.

Matthew T. Mangino, a regular contributor to The
Crime Report, served as an elected District Attorney in Pennsylvania and on the
state’s Board of Probation and Parole. He is now of counsel with Luxenberg,
Garbett, Kelly & George P.C. His book The Executioner’s Toll,
2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.